The recently announced XML-based file formats for Word, Excel, and PowerPoint -- formats that Microsoft has claimed to be "open" -- are getting some heat for not only pushing the boundaries on the definition of open, but also for the validity of the patents behind them. In addition, the patents behind other Microsoft XML technologies are under heavy scrutiny as well.

The recently announced XML-based file formats for Word, Excel, and PowerPoint -- formats that Microsoft has claimed to be "open" -- are getting some heat for not only pushing the boundaries on the definition of open, but also for the validity of the patents behind them. In addition, the patents behind other Microsoft XML technologies are under heavy scrutiny as well.

According to an in-depth story on eWeek.com, the royalty-free terms under which Microsoft is making the formats available are not compatible with the GNU General Public License (the GPL). In addition to being the software license used for Linux, the Free Software Foundation's GPL is one of the most widely applied licenses in the open source software world. In terms of incompatibilities between Microsoft's license and the GPL, the upshot, according to the eWeek story, is that many free and open-source software projects will be prevented from using Microsoft's Office XML formats.

According to the eWeek story, Stallman dismissed any benefit to the free-software community from the move, saying "It covers only code that implements, precisely, the Microsoft formats, which means that a program under this license does not permit modification." Not only do open source licenses allow for modification, the spirit of the open source community encourages it. However, in much the same way that there may be barriers to the free cross-pollination of Microsoft's XML formats with GPL-licensed open source, similar barriers exist to the incorporation of some non-GPL-licensed open source code-bases with GPL-licensed ones. This state of balkanization within the open source community is directly related to the number of different and often incompatible open source licenses that have proliferated over the years.

The eWeek story goes on to say that Jean Paoli, the senior director of XML architecture for Microsoft, insisted Microsoft is committed to open XML file formats, but admitted that a requirement that forces those who use the XML file format to attribute this in their code "could preclude any technology that uses these file formats from being used in Linux and other open-source technologies licensed under the GPL."

As if the licensing controversy isn't enough for the new formats, there's also some question as to Microsoft's ability to enforce the licensing terms given the validity, or lack thereof, of the intellectual property rights that Microsoft claims to have to the technology. The eWeek story goes on to discuss how the Public Patent Foundation's executive director Dan Ravicher picked apart the legal language that Microsoft attached to the XML formats and how it's unclear as to what patents, or pending patents, are the lynchpins to the license's enforceability. Said Ravicher, according to the story, "If they had any applicable patents, they'd most assuredly tell people what those patents are. I can't see that they have done that. So, all they've said is that they may have patents and, if they do, these are the terms under which they'll license them to you. While it is true the terms of such a license are GPL-incompatible, there is no need to comply with them until we are certain they have something that must be licensed."

When asked about the specific intellectual property that applies to Office's XML file formats, a Microsoft spokesperson told me via e-mail: "Microsoft does not comment on the scope of patent applications or patents. The language of the patent application speaks for itself. Others are free to summarize or characterize the contents if they wish. Generally, however, like other major technology innovators, Microsoft routinely applies to obtain patents on its inventions. A patent establishes ownership of an invention and is only granted if government patent examiners conclude that it is a true innovation compared with existing technology. While Microsoft has committed to a royalty-free license to create and distribute programs that can read and write the Office 2003 XML Reference Schemas, if it doesn't take the responsible step of patenting its inventions, then someone else will likely do so. The company wants to avoid this unnecessary confusion for its customers."

Elsewhere around the Net, one of Microsoft's newer patents -- one that's relevant to XML -- is getting vetted quite aggressively in an attempt to demonstrate that at least some of the company's intellectual property rights may be baseless. In his blog, Sun director of Web technologies Tim Bray (also, the co-inventor of XML) replays an imaginary conversation that Microsoft might consider to be the basis of an invention, but that Bray warns is not. The implication of the mock conversation is that the core techniques behind Microsoft's patent on XML serialization and deserialization (US Patent no. 6,898,604) were already widely known (in other words, prior art existed) and that complementing it annotations is too simple and frivolous of an improvement to warrant new consideration by a patent body. But, if that's not enough of a prior art objection, Bray also excerpts a newsletter from Greg Aharonian of bustpatents.com, who unearthed what he considers to be significant prior art -- prior art that already existed at the time Microsoft originally filed for the patent in June 2001.

Meanwhile, as a reminder, Microsoft has had several recent flirtations with the open source community, including one with Open Source Initiative acting president Michael Tiemann and another with Red Hat CEO Matthew Szulik. Between those meetings, the spotlight that's being placed on Microsoft's claim to openness as well as to certain intellectual property, and the fact that the company has already released 17 different code-bases (perhaps more by now) under a range of licenses that are not purely proprietary (everything from "shared-source" to OSI-certified open source), could Microsoft just be midway through the throes of a painful transition that it must make to survive in a fully open world?

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